WEBVTT - Johnson Amendment Faces Repeal (Audio) 0:00:00.240 --> 0:00:02.960 At his first National Prayer Breakfast as President of the 0:00:03.080 --> 0:00:06.160 United States, Donald Trump said he will quote get rid 0:00:06.200 --> 0:00:10.440 of and totally destroy the Johnson Amendment, that provision of 0:00:10.480 --> 0:00:13.280 the tax code. The Johnson Amendment prevents houses of worship, 0:00:13.400 --> 0:00:17.200 like other not for profit organizations, from directly or indirectly 0:00:17.239 --> 0:00:20.800 participating in political campaigns. The law has been in effect 0:00:20.840 --> 0:00:23.520 since nineteen fifty four, when it was introduced by then 0:00:23.560 --> 0:00:27.160 Senator Lyndon Johnson, and repealing it would require an Act 0:00:27.200 --> 0:00:29.880 of Congress. Here to talk with us about the Johnson 0:00:29.920 --> 0:00:34.159 Amendment and it's possible future are Alan Brownstein, a professor 0:00:34.280 --> 0:00:37.360 at U C. Davis School of Law, and Miriam Galston, 0:00:37.440 --> 0:00:43.000 a professor at George Washington University Law School. Alan, the 0:00:43.080 --> 0:00:45.760 Johnson omen has been around now for a very long time. 0:00:46.200 --> 0:00:49.800 UH churches seem to be able to participate in some 0:00:49.880 --> 0:00:52.720 political activities, but it prohibits them for being in campaigns. 0:00:52.760 --> 0:00:57.520 What exactly are the parameters of the Johnson Amendment? Big 0:00:57.640 --> 0:01:03.040 Johnson Amendment prohibits five or one three C organizations and 0:01:03.120 --> 0:01:09.720 those are nonprofit organizations that get very favorable taxics and status. UH. 0:01:09.760 --> 0:01:15.319 It prohibits them from endorsing political candidates. Participating in a 0:01:15.319 --> 0:01:20.720 political campaign for any candidate for political offices. If they 0:01:20.760 --> 0:01:24.760 do that UH, in theory, they could lose their tax 0:01:24.800 --> 0:01:28.679 ex and status. On the other hand, it should be 0:01:28.720 --> 0:01:34.240 clear that this provision of the tax code is very 0:01:34.400 --> 0:01:38.720 very loosely enforced. Its very unusual for the i r 0:01:38.840 --> 0:01:43.640 S to go after a religious organization on the grounds 0:01:43.640 --> 0:01:48.560 that they are unacceptably in permissibly participating in a political campaign. 0:01:48.840 --> 0:01:51.760 Miriam to that point, Since two thousand eight, pastors have 0:01:51.920 --> 0:01:56.400 openly defied the law on pulpit freedom Sunday, and many 0:01:56.520 --> 0:01:59.720 participating pastors even send their sermons to the i r 0:01:59.840 --> 0:02:03.080 S afterward. Only one has been audited by the i 0:02:03.320 --> 0:02:06.240 r S and none punished, according to the Washington Post. 0:02:06.320 --> 0:02:10.760 So what would be the impact of taking this law away? 0:02:13.120 --> 0:02:17.320 The impact could be great. Be set up that you 0:02:17.480 --> 0:02:23.560 had incorrectly stated what the UH Johnson Amendment does. It 0:02:23.639 --> 0:02:30.160 prohibits participation in political campaigns by all charities, UH, churches, 0:02:30.320 --> 0:02:34.000 other religious organizations, are any kind of charity. The Sierra 0:02:34.080 --> 0:02:39.000 Club a ARPS charitable entity. So it would have an 0:02:39.040 --> 0:02:44.880 impact not just on churches, which, as you pointed out, UM, 0:02:45.240 --> 0:02:48.760 in connection with which the probition is not enforced lately. 0:02:49.120 --> 0:02:51.760 Although the I R S used to audit churches and 0:02:51.800 --> 0:02:55.240 religious organizations, they don't anymore, but they still do audit 0:02:55.560 --> 0:03:02.639 other charities that engage in politics. Alan to to that 0:03:02.720 --> 0:03:06.120 point is there. It's not totally clear what the president 0:03:06.200 --> 0:03:10.720 is looking at, but can that they can churches be 0:03:10.800 --> 0:03:17.600 exempted from these requirements without also exempting those other charitable organizations. 0:03:18.960 --> 0:03:23.360 I think if you try to amend the tax code 0:03:24.080 --> 0:03:30.280 to permit the churches religious organizations to engage in partisan 0:03:30.360 --> 0:03:36.760 political activity, but continue to apply the provision against secular 0:03:36.920 --> 0:03:43.440 charitable organizations, that would raise very serious constitutional concerns. It 0:03:43.520 --> 0:03:46.960 could be a violation of either the free speech laws 0:03:47.560 --> 0:03:52.040 of the First Amendment or the establishment course on the 0:03:52.080 --> 0:03:57.960 First Amendment. Basically attacked exemption is a subsidy, and it's 0:03:57.960 --> 0:04:00.120 been interpreted by the courts to be a form of 0:04:00.200 --> 0:04:06.760 subsidies and more. The government generally has considerable discretion in 0:04:06.880 --> 0:04:12.120 determining which private organizations or activities it would choose to subsidize. 0:04:12.880 --> 0:04:16.440 Um there's a pretty strong argument that it can to 0:04:16.600 --> 0:04:21.080 do that in a viewpoint discriminatory way. That is to say, 0:04:21.240 --> 0:04:25.320 it couldn't decide only to subsidize Democrats and our Republicans. 0:04:25.520 --> 0:04:28.680 It couldn't decide only to subsidize right wing but not 0:04:28.839 --> 0:04:33.240 left league and speakers or organizations. Um. And there's a 0:04:33.279 --> 0:04:37.039 long line of Supreme Court authority that has determined that 0:04:37.160 --> 0:04:40.919 religion is a viewpoint of speech. So there'd be a 0:04:41.080 --> 0:04:47.080 pretty persuasive argument than if you limited the ability of 0:04:47.200 --> 0:04:52.920 secular nonprofits to engage in Protestant political activity but committed 0:04:53.000 --> 0:04:57.200 religious speakers and expressive organizations to do so, that you'd 0:04:57.240 --> 0:04:59.640 be violating the free speech course in the First Amendment. 0:05:00.240 --> 0:05:04.040 And there's also an argument that doing so would violate 0:05:04.120 --> 0:05:07.799 the establishment cause. And again we have some case President 0:05:08.040 --> 0:05:12.920 President that says that if you give an exemption, a 0:05:13.040 --> 0:05:16.360 tax exemption to religious speakers, in that case it was 0:05:16.400 --> 0:05:20.960 a religious publisher, but you don't give comparable tax exemptions 0:05:21.320 --> 0:05:25.000 to secular publishers, that that would violate the establishment cause. 0:05:25.520 --> 0:05:28.080 I'm Michael Best with June Grosso and Greg Store. This 0:05:28.160 --> 0:05:30.920 is Bloomberg law, and we are talking about the Johnson Amendment, 0:05:30.920 --> 0:05:35.200 which prohibits UH not for profit entities, including religious organizations, 0:05:35.200 --> 0:05:39.000 from participating in political campaigns. The President says that he 0:05:39.040 --> 0:05:41.680 will destroy it in his words because in his view, 0:05:41.720 --> 0:05:45.000 it prevents clergy from speaking freely on politics and without 0:05:45.120 --> 0:05:48.920 fear of retribution. We're talking to Alan Brownstein of the U. C. 0:05:49.120 --> 0:05:52.280 Davis School of Law and Miriam Galston of George Washington 0:05:52.760 --> 0:05:57.560 University Law School. Alan, one of the things that is 0:05:57.600 --> 0:05:59.880 interesting here is that people make donations to not for 0:06:00.000 --> 0:06:02.960 profit entities and they get a tax deduction, whereas for 0:06:02.960 --> 0:06:06.160 political donations they don't get that tax deduction. What would 0:06:06.160 --> 0:06:11.440 be the implications of allowing in the context of campaign contributions, 0:06:11.440 --> 0:06:14.520 what would be the implications of allowing UM not for 0:06:14.560 --> 0:06:20.719 profits like churches to speak out in political campaigns. Well, 0:06:20.920 --> 0:06:25.040 if you repeal the Johnson Amendment and allowed all of 0:06:25.200 --> 0:06:30.000 five and one seas three organizations to commit essentially an 0:06:30.040 --> 0:06:34.919 unlimited amount of their resources to political campaigns, you would 0:06:35.000 --> 0:06:39.279 essentially make donations for the election of political candidates tax 0:06:39.320 --> 0:06:45.360 deductible UM and memories is two concerns. One is, tax 0:06:45.400 --> 0:06:49.560 deductions for charity are only valuable the donors who itemize 0:06:50.040 --> 0:06:53.880 their tax returns, who basically earn enough income to take 0:06:53.920 --> 0:06:57.599 advantage of these deductions. So what you would be doing 0:06:57.720 --> 0:07:01.839 is creating a two tier system. Americans who are wealthy 0:07:02.000 --> 0:07:07.640 enough to take charitable deductions, would be able to contribute 0:07:07.720 --> 0:07:13.120 more money more after tax money UH to political candidates 0:07:13.320 --> 0:07:19.960 and campaigns. Then would less wealthy Americans with lower incomes 0:07:20.080 --> 0:07:26.760 who can't take advantage of charitable deductions. The other consequence 0:07:27.920 --> 0:07:31.480 of this repeal would be that you would simply infuse 0:07:31.760 --> 0:07:37.400 more money into election campaigns. If someone donated a thousand 0:07:37.400 --> 0:07:41.480 dollars during the last election campaign, either for her Hillary 0:07:41.520 --> 0:07:45.520 Clinton or for Donald Trump, UM, if they could and 0:07:45.600 --> 0:07:51.080 that donation would not be tax deductible or undercurrent rules, UM, 0:07:51.200 --> 0:07:55.560 if you repeal the Johnson Amendment, UH, they could donate 0:07:55.680 --> 0:07:59.640 fourteen hundred dollars to a five or one rec organization 0:07:59.760 --> 0:08:02.160 that is going to use all of that money for 0:08:02.680 --> 0:08:06.880 an electoral campaigning UH. And you've increased the amount that 0:08:06.920 --> 0:08:12.920 they could contribute to political campaigns by So you know, 0:08:13.080 --> 0:08:16.559 if you think that there really isn't enough private money 0:08:16.880 --> 0:08:20.520 in politics and in elections, and it would be good 0:08:20.680 --> 0:08:24.680 to have a great deal more money being contributed to 0:08:24.880 --> 0:08:29.200 election campaigns, um, and then you might support this repeal. 0:08:31.400 --> 0:08:33.480 What you take on this, I mean, are we create 0:08:33.520 --> 0:08:36.360 potentially creating It almost sounds like this whole new category 0:08:36.440 --> 0:08:41.319 of super duper packs here well, I agree with Alan 0:08:41.640 --> 0:08:47.920 that money would shift from sea fours and from to 0:08:49.520 --> 0:08:54.080 threes if the Johnson Amendment were repealed. But I have 0:08:54.840 --> 0:08:59.240 UH two caveats that are important. One is that in 0:08:59.320 --> 0:09:02.000 order to be a title to a charitable exemption in 0:09:02.040 --> 0:09:05.960 the first place, UM, an entity has to have a 0:09:06.040 --> 0:09:12.400 charitable mission, and it cannot have even one substantial non 0:09:12.520 --> 0:09:19.079 charitable purpose, even one UH substantial UH non charitable purpose, 0:09:19.120 --> 0:09:23.760 and it's no longer entitled to the exemption. Furthermore, UM, 0:09:23.800 --> 0:09:27.520 it's also the case that if I a charity provides 0:09:27.720 --> 0:09:32.760 more than a small amount of private benefit, it would 0:09:33.640 --> 0:09:37.840 also no longer be entitled to tax exemption. So the 0:09:37.880 --> 0:09:42.319 idea that UM money could flow as freely through a 0:09:42.440 --> 0:09:46.880 charity as it would flow through a UH pack, I 0:09:46.920 --> 0:09:51.280 think is UM exaggerated. The second point I wanted to 0:09:51.360 --> 0:09:55.319 make is that UM the main, although not the only 0:09:55.600 --> 0:10:00.400 bill that's been introduced today was by Steve Scale, and 0:10:01.080 --> 0:10:05.440 it's it's called legislation to repeal the Johnson Amendment. But 0:10:05.520 --> 0:10:09.800 when you read it, you see it's extremely narrowly crafted. 0:10:10.760 --> 0:10:16.400 Organizations charitable organizations are only permitted to engage in political 0:10:16.920 --> 0:10:20.560 UH speech in the ordinary course of the organization's regular 0:10:20.600 --> 0:10:25.440 and customary activities in carrying out its charitable purpose um. 0:10:25.559 --> 0:10:29.719 And if any expenditure is only diminimus. So what that 0:10:29.760 --> 0:10:32.880 means is if we um if this is the kind 0:10:32.920 --> 0:10:39.160 of proposal for repeal that would get enacted. A pastor 0:10:39.640 --> 0:10:44.160 could make comments from the pulpit um as long as 0:10:44.200 --> 0:10:48.120 they were part of a servant, but not hold a 0:10:48.200 --> 0:10:52.480 special event at the church to promote one or another candidate.